Copyright: The Constitutional Background

***This is not intended to be legal advice. First, this is an ESL Primer, and so is fairly simplified. Second, each person’s situation is different.  Please contact your attorney for legal advice as it applies to you!! 


The Constitutional Background

by Profs. Olivia L. Blessing, JD and Angela K. Blessing, MBA, JD

 via “Cultured Muse


When asked to think back to the American Constitution, many Americas recall dusty memories of political office age restrictions and voting laws. Yet, the founding fathers were not only devoted to taxes and wars; they were interested in cultural and scientific issues as well.

In fact, they considered art and inventions so important to American culture and development as to warrant Constitutional protection. In America, the Constitution is the highest law in the country, it trumps everything.  If it is in the Constitution, it is extremely important to the Government. And Copyright protection is one of those extra important issues the Government is involved in.

So what exactly does the Constitution say?  As we saw before, Article 1, Section 8 of the U.S. Constitution says Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Cool! Now, what does that mean?

Basically, it means that the Government encourages the arts and sciences by offering authors and inventors the right to stop anyone else from copying or using their writings or inventions for a limited amount of time.

More specifically, there are two things of note revealed in this rule.

  1. Copyright belongs to Federal Law

“Congress has the power. . . “

We are not going to get into the distinctions between U.S. federal and state government here; the concept is difficult enough for law students and needs no confusing explanations here.  Suffice to say, any argument or issue regarding Copyrights is going to end up in Federal Court with Federal Judges and controlled by Federal Law.  “Federal” meaning the national government based in Washington, D.C.  Think President, Supreme Court, the Senate, and the House of Representatives.

This is convenient in that artists and business professionals only need to remember the Federal approach to the law rather than struggling with 50 different states’ rules.

We’ll talk more about the  actual laws itself later.

  1. The Federal Govern Has a Very Specific Reason for Enforcing Copyright Law

“[T]o promote the progress of science and useful arts. . .”

Why on earth would the National Government get involved in the subject of rewarding author’s and creator’s for their work? It’s not like the Government is usually involved in business affairs such as this—they don’t honor plumbers for their work on the pipes or protect firefighters for their time fighting fires.  What makes “artists” and “inventors” so special that they get extra governmental rewards?

First of all, the purpose for Copyright protection is not to reward the artist.  It is to promote the sharing of knowledge, ideas, and information with the public who can use it to promote the public good. As the Supreme Court has explained, the Copyright Clause in the Constitution is intended to realize “the creation and dissemination of information. . . .[promoting] knowledge and learning” (Eric Eldred v. Ashcroft, 537 U.S. 186 (2003)).   They went on to say, the Clause accomplishes this goal by “motivating the creative activity of authors” via “the provision of a special reward.” (Sony Corp. of America v. Universal City Studies, Inc., 464 U.S. 417, 429 (1984)).  By offering a reward (a certain time during which the creator controls the use of their work), the Government encourages them to share it with the public thus benefitting society as a whole.

  1. What is the General Result of Copyright Law?

All in all, a Copyright gives the inventor a monopoly over the use of their work for an extensive period of time.

Traditionally, Americans have been adverse  to monopolies, but in the case of Copyrights it is generally considered a good thing that benefits society in the long run.  There are three primary results that Congress believes Copyrights achieve:

The Creation of New Ideas.  There is a reason developing countries focus so intention on “innovation” and “entrepreneurship.” Without this, the society stagnates and ceases to grow and improve.  Only with the introduction of new ideas, inventions, or discussions will the public continue to find new methods of becoming better and better versions of themselves.

Thus Congress offers inventors and creators a limited time of protection so that they might benefit from their work and thus be encouraged all the more to share what they discover with society.

First, it is during that time that the author or inventor will profit the most from their work. Think about it.  Once a book is available free online and people have free access to it, does the original creator make as much money as they do when they control all the prices and places where the book is sold?  No. Once you lose control, you start to lose money.  So in exchange for them sharing their creation with the world, Congress gives them a limited time to benefit monetarily.

Second, this protection gives the creator a great deal of control–monitoring who can sell, who has access, who can use the work and for what purpose.  Because of that control, they supposedly are more comfortable sharing their new findings.  Let’s say you are a really great film-creator, but your newest historical work deals with mature topics–illnesses, death, war.  You want people to have access to your movies, but you strongly believe that children younger than 13 are too young.  With a Copyright, you have the right to tell the theatres and sellers that the film must include a warning against showing it to children.  You also know that no one will distort your work or change your message because the Government will punish them if they do.  Because you have that control, Congress believes you feel more comfortable sharing your work with the world.

Fairness.  American law was founded upon the important concept of “fairness”—what is the most fair thing to do?  Fairness is why courts enforce contracts, why bad production is punished under torts, and why criminals are guaranteed a lawyer.  In our hearts, it seems only fair that people who work hard to create something should be rewarded for their hard work so long as the public still benefits. As John Locke, a great English philosopher, said “Every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say are properly his”(Locke, “Second Treatise of Civil Government“).

 The Dissemination of Those Ideas Freely Amongst the Public. The government does not want the creator to have a permanent monopoly over the work or concept forever.  Society will not improve unless the public can actually use the new inventions and ideas in their own lives and work.

Remember the use of the word “limited” in the Constitution.   After the time runs out, the idea/work belongs to the public and is free for their use.  They can in turn build upon it or work with it to create even newer ideas or inventions.


Having decided that Copyright is the best way to protect your efforts, you need to understand what Copyrights do and how the Government views them.  You benefit from the fact that Copyright protection was important enough to be in the Constitution; this means that the court should take your situation very seriously.  As an element of Federal Law, your protection goes beyond simply your local state or city—it extends nationwide. Furthermore, it is comforting to know that fairness is so important to the courts and that they are prepared to offer you an incentive for sharing what you’ve learned.

However, don’t forget that the final purpose of the law is not to benefit you but to benefit society as a whole.  Fairness is important, but it is not your strongest selling point if you are in a court case.  The government is primarily looking out for the interests of society, and that is where your strongest argument for the protection of your work should come from.  You need to convince the Government that by offering you this protection, they will be ultimately  helping to improve and help the  public.




Art and law come together at weekend conference

“Art and law come together at weekend conference”

by Michelle Liu via “Yale Daily News” 

An upcoming conference will show that artists do more with the law than get in trouble with it.

This weekend, over 350 people from all over the world will attend “The Legal Medium,” a multidisciplinary conference taking place this Thursday through Saturday at the Yale Law School. Organized by a group of 14 graduate and undergraduate students, the event aims to explore the relationship between art and the law, focusing on topics such as how artists manipulate legal boundaries in their work. Amar Bakshi LAW ’15, the main organizer of the conference, said the upcoming event is unique in that it approaches the art-law connection from an artistic rather than a legal perspective.

“Most conferences on law and art tend to be about how lawyers deal with issues such as repatriation of works, cultural property in different domains or even the economics [of art] and its linkages to different legal systems,” Bakshi said.

Alexandra Perloff-Giles LAW ’17, a co-organizer of the conference, also highlighted the uncommonly interdisciplinary nature of the conference, noting that it draws together a large variety of professionals from different disciplines, such as architects, curators, lawyers and poets. She added that such collaborative ventures between multiple graduate schools at Yale — including the YLS and the Yale School of Art — are also rare.

The conference will feature a presentation by performance artist Tehching Hsieh, who is renowned for acts such as relegating himself to solitary confinement for a year. His piece will both comment on legal regimes and interact with them, according to Bakshi.

Four discussion panels will also be held during the conference, exploring how artists interact with laws of the human body, artificial and natural environments, the digital world and the government.

Perloff-Giles emphasized that encounters between art and law in the modern world occur in many different ways. She cited the detainment of artist Tania Bruguera, originally a speaker for the conference, in December 2014 by the Cuban government after Bruguera attempted to stage an open mic event in Havana, Cuba.

In conjunction with the conference itself, Lucy Hunter GRD ’19 is curating an exhibition entitled “Irregular Rendition” at the Fred Giampietro Gallery on Chapel Street. Hunter said the exhibition seeks to expand the ways in which laws — ranging from laws of jurisprudence to laws of physics — are viewed from an artistic perspective.


Art Law Rising

“Art Law Rising”

by Robert Milburn via “Barron’s”

The fast-growing and unregulated art market, invaded by art-collecting novices, has already seen a proliferation of hand-holding art advisors. Now we are seeing a new art advisor enter the market: specialist lawyers helping to settle ownership, copyright and authenticity disputes.

“Even people that have experience make common mistakes,” says Brian Kerr, partner at the recently launched art law firm Spencer Kerr. “The works being sold are of staggering value so the stakes are just too high.” That’s precisely when people reach for their lawyers.

Getty Images

Ronald Perelman purchased Popeye, by artist Jeff Koons, from Larry Gagosian.

Consider billionaire art collector Ronald Perelman, who sued fabled art dealer Larry Gagosian, claiming Gagosian “took advantage of his position of trust” and misrepresented the value of certain works. According to the lawsuit, Gagosian overvalued works sold to Perelman and undervalued pieces it bought from the collector. Among the works changing hands were sculptures by Jeff Koons and Richard Serra and paintings by Cy Twombly. In December, Perelman lost in an appeal with a five-judge panel essentially ruling that the sophisticated collector could have conducted his own due diligence.

Kerr represented London-based filmmaker Joe Simon-Whelan, in 2009, against the Warhol Foundation for the Visual Arts. Simon-Whelan purchased a Warhol silkscreen self-portrait for $195,000 in 1989, which back then was deemed genuine by the foundation. He resubmitted it to the foundation for authentication, in 2001 and 2003, just before an anticipated $2 million sale, and this time the work was twice branded a fake.

In the end, the Warhol foundation spent $7 million on its defense. Simon-Whelan eventually folded and was awarded nothing, claiming he was “deeply saddened” about being “unable to reveal the truth in court, but faced with bankruptcy, continuing personal attacks and counterclaims, I realized I no longer stood a chance of proceeding further.” Shortly thereafter, in 2012, the Warhol authentication board was disbanded.

Much of Kerr’s current work involves helping shell-shocked collectors recover scraps from among the emotional and financial wreckage, after purchasing a fake. But the law firm is also connecting its previously-burned clients with outside consultants and art advisors to help them establish clear provenance and authenticity before they buy new work.

“The goal is that when [clients] stick up their hand at an auction or buy from a gallery, that the legal side and consulting work is done hand-in-hand,” Kerr says. He adds that the consultants bill separately for their services and the law firm collects no fee for referring the business.


UNESCO welcomes UNSC resolution to protect cultural heritage in Syria, Iraq

“UNESCO welcomes UNSC resolution to protect cultural heritage in Syria, Iraq”

via “KUNA

PARIS, Feb 13 (KUNA) — The Director-General of the UNESCO Irina Bokova welcomed on Friday the adoption of a new UN Security Council Resolution 2199 that condemns the destruction of cultural heritage and adopts legally-binding measures to counter illicit trafficking of antiquities and cultural objects from Iraq and Syria.
“The adoption of resolution 2199 is a milestone for enhanced protection of cultural heritage in Iraq and Syria, extending to Syria the prohibition of trade of cultural objects already in place for Iraq since 2003,” Bokova said.
“It is also a clear recognition that the pillage, destruction and trafficking of cultural heritage are more than a cultural tragedy – this is also a security and political imperative to be taken into account in all peace efforts,” she added.
Bokova warned that the pillage of Iraq’s and Syria’s culture has reached an unprecedented scale in Iraq and Syria, adding that the revenues of such as fuel the conflicts by providing money for armed groups and terrorists.
“This resolution acknowledges that cultural heritage stands on the frontline of conflicts today, and it should be placed at the frontline of security and political response to the crisis”, she said.
She also welcomed the strong call to the responsibility of all parties in the conflict to protect cultural heritage. She commended also the overwhelming support by Security Council Members in favor of this resolution.
“The protection of the cultural heritage of Syria and Iraq has strategic implications – it is fundamental for the identity and social cohesion of all Iraqis and Syrians and it is a precondition for future reconciliation and recovery”.
Welcoming the explicit role attributed to UNESCO by the Security Council, Bokova reaffirmed the Organization’s commitment “to stand by Member States to ensure the full respect of the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property”.
“The destruction of the unique cultural heritage of Syria and Iraq is a loss for all humanity and it is our common responsibility to stand up for its protection,” she concluded.


A Family Battles Over a Disappearing Trove of Chinese Paintings

“A Family Battles Over a Disappearing Trove of Chinese Paintings”

By Graham Bowley via “New York Times

It has evolved into one of New York’s longest-running fights over an estate.

For more than a decade, the family of C. C. Wang, a collector whose name graces a gallery at the Metropolitan Museum of Art, has been battling over a trove of classical Chinese paintings and scrolls that has been described as among the finest in the world.

Now, the feud has escalated. In the past month, two of Mr. Wang’s children, who have been fighting in Surrogate’s Court in Manhattan since his death in 2003 at 96, filed lawsuits in state and federal courts accusing each other of looting and deceit.

But beyond the family strife, a broader issue is dismaying Chinese-art experts for whom the Wang collection has long been a source of wonder.

Dozens, perhaps hundreds, of works from an estate once valued in court papers at more than $60 million have gone missing, including an 11th-century scroll, “The Procession of Taoist Immortals,” that is viewed in China as a national treasure.

“This is heartbreaking, and it is happening right here in the city,” said Laura B. Whitman, a specialist in Chinese art formerly with Sotheby’s and Christie’s, who used to visit Mr. Wang at his apartment in New York to view his collection.

Divining who rightfully owns these works, and who is to blame for the disappearance of so many of them, has consumed the family for more than a decade.

The case has become so complex, and so expensive, that the Surrogate’s Court has suspended discussing matters of inheritance until it can come up with a reliable inventory of what was initially in the collection to see if the estate will be able to pay lawyers and other creditors.

Among the few certainties at this point is that Mr. Wang demonstrated the ability to acquire objects of historical importance, objects that since his death have increased many times in value as the Chinese art market has boomed.

Born near Suzhou, China, in 1907, he moved to the United States during China’s political upheavals in 1949, settling in Manhattan, where he built a career teaching, consulting at Sotheby’s, and dealing in real estate and in art. He became the dean of the rarefied market for Chinese art in New York and was an accomplished artist in his own right. By the end of the 1990s, the Met had bought some 60 works that were once part of his collection and named a gallery in his honor.

Among the Met acquisitions was a colossal hanging scroll titled “Riverbank,” attributed to the 10th-century painter Dong Yuan, but which attracted its own controversy after some scholars declared it a 20th-century forgery.

Maxwell K. Hearn, chairman of the Met’s Asian art department, said Mr. Wang acquired much of his important collection early on, when the market for Chinese art didn’t exist.

“He saw their continued relevance as sources of artistic inspiration,” Mr. Hearn said. “Now, they have become enormously valuable, because people are recognizing their cultural significance and acknowledge him as a source of validation.”

Before his death, Mr. Wang left some works to his daughter Yien-Koo Wang King, now 79, and some to his son, Shou-Kung Wang, now 85, both of whom served during different periods as confidant and business agent to their father.